The lawyers of a Palestinian Gazan man have made a formal submission to the International Criminal Court (ICC) prosecutor demanding that 14 Hamas leaders be investigated for crimes committed against the Palestinian people.
To date, the ICC has not charged even one Hamas leader with any crimes committed against their own civilians. This is despite the fact that the ICC has charged leaders of Hamas and Israel with crimes committed against each other’s populations during the Gaza war.
This submission, therefore, marks the first such filing by a Palestinian against Hamas.
One of the two American attorneys, Elliot Malin, revealed this exclusively to The Jerusalem Post on Friday. Malin was joined by Eli Rosenbaum, a former senior US Justice Department war crimes prosecutor, and French attorney Sarah Scialom.
The 40-page article demands that 14 named Hamas leaders be investigated for crimes committed against the Palestinian people, with an eye toward the issuance of warrants for their arrest.
The client is a Palestinian civilian from Gaza who lost his wife, children, and other family members in the war in Gaza.
The submission demonstrates that if Hamas had not committed these war crimes and other crimes against the Palestinian people, the client’s family and countless other Palestinians would be alive today.
The crimes detailed in the submission include: the war crime of utilizing the presence of civilians or other protected persons as human shields; the war crime of attacking civilians; the war crime of intentionally directing attacks against civilian objects; the war crime of willfully causing great suffering; the war crime of destruction and appropriation of property; the war crime of excessive incidental death, injury, or damage; the war crime of attack protected objects; the war crime of committing outrages upon personal dignity; the war crime of using, conscripting or enlisting children; the war crime of sentencing or execution without due process.
The submission also includes the crime against humanity of murder, the crime against humanity of extermination, the crime against humanity of torture, and the crime against humanity of persecution.
The lengthy submission to the OTP documents that the best known of Hamas's premeditated crimes, the use of Palestinian civilians as human shields and indeed human sacrifices, was the war crime that was principally responsible for the high death toll and extensive destruction experienced in Gaza.
This crime is in direct violation of the 1949 Geneva Conventions.
The Hamas leaders identified in the submission are Izz al-Din al-Haddad, Khaled Mashaal, Mahmoud al-Zahar, Mohammed Odeh, Muhannad Rajab, Khalil al-Hayya, Mousa Abu Marzook, Ghazi Hamad, Izzat al-Rishq, Fathi Hamad, Nizar Awadallah, Husam Badran, Zaher Jabarin, and Basem Naim.
'Palestinian people deserve justice'
“The Palestinian people, including our client, deserve justice for the atrocities committed against them by Hamas, with the full backing of Iran’s leaders," said Malin.
"To this day, the ICC’s Office of the Prosecutor (OTP) has not investigated, let alone sought warrants for, crimes cynically committed by Hamas and its accomplices against Palestinians during the war."
"Pursuing such justice goes to the heart of the mission of the OTP and the International Criminal Court, which it serves. Failing this mission means failing to deliver equal access to justice for those whom the Court has ruled fall under its jurisdiction."
Malin said that, if the Prosecutor and International Criminal Court refuse to seek justice for Palestinians who have been victimized by Hamas, the Court "must ask OTP why the Gazan victims of Hamas inhumanity are being denied full justice.”
"Had Hamas’ fighters instead fought in compliance with longstanding international law rather than by hiding behind and underneath Gazan civilian men, women, and children, the civilian death toll would undoubtedly have been only a fraction of what it was,” Rosenbaum said.
“The credibility of international criminal justice rests on its ability to deliver swift accountability for crimes of this magnitude,” said Scialom.
“OTP’s continuing failure to pursue justice on behalf of Hamas’s deceased and displaced Palestinian victims in Gaza helps incentivize the repeated commission of such crimes as an effective geopolitical strategy, and it keeps the victimized Gazan community in the dark about essential facts of their victimization."
Scialom said she is honored to represent the Palestinian client, whose family "tragically suffered enormous losses during the Gaza war."